Knee Jerk First Reaction: Bill on National Security Committee of Parliamentarians

Thursday, June 16, 2016 at 4:06PM
craigforcese

The much anticipated bill has now been introduced, here. For background and my earlier position on this matter, see here.

My first take, in the interests of constructive criticism. Warning: I am a hard marker. Forgive typos. On a bouncing Via train.

This is a good bill, although with inevitable flaws likely reflecting compromises designed to reconcile elements within the government. On an immediate read, I would give it a high pass, although not a pass with distinction. First, I assume that this bill is not the end game for reformed review, and that we will see further enhancement of the expert review bodies ( noted in the bill) in a future bill. With that caveat, this bill is an improvement over the status quo and the Martin era bill C-81. It is important that the bill includes a working relationship with the expert review bodies, that it has reasonably robust staffing provisions and includes members from both chambers.

The committee mandate is reasonable. In practice, though, this is likely a committee that will be able to do serious work on only high level efficacy-related issues noted in clause 8(a). There are two reasons for that. First, the power to review "activities" in clause 8(b) is subject to national security veto by the minister. This broad veto places the committee on a much more constrained footing in terms of reviewing activities than the expert review bodies like SIRC. Second, while the initial access to secret government information anticipated in the bill seems broad, clause 16 is a potential Mack truck exception. Specifically, the classes of information that can be denied under that provision, cross referenced to the Security of Information Act, appear on first blush to be tempered, but it includes any info from which the prohibited info may be inferred. Based on past practice in government secrecy world, the universe of info that the Government tends to believe may give rise to inferences is vast. It is also concerning that there is no dispute resolution mechanism on this issue. We will not see a repeat of the Arar Commission, where the Commission took the government to court over some of its redactions form the Commission's final report. Going to court is almost certainly foreclosed. Bottom line: this committee cannot see as much information as SIRC can, within the latter's review mandate. On the other hand the fact that when disclosure requests are refused must be reported to a review body -- assuming there is one that is relevant to the department in question -- is a good thing.

The ability of the PM to redact final committee reports is broader than ideal -- at the very least there should be a capacity for the committee to signal that redactions have been made. And again, the absence of a dispute settlement system here is less than ideal.

Other points of potential controversy: whether parliamentary privilege can be constitutionally legislated out of existence per clause 12 is something I leave to parliamentary proceduralists to debate.

The idea that the parliamentarians should be subjected to security clearance is essentially alien to other such committees in other democracies. There, it is considered a violation of separation of powers for the executive branch to investigate members of the legislative branch. A 2004 Martin government discussion paper raised concerns about the political implications of the government of the day using its security service to investigate the backgrounds of opposition parliamentarians.

Appointment of the chair by the PM was a controversial practice in the UK, abandoned in reforms several years ago -- now the chair is elected by the members. Here, however, the chair is appointed by PM

The selection of members could be stronger. Selection by the PM with consultation with opposition leaders is a comparatively weak system -- there is no ratification by Parliament itself. Consultation by certain PMs in the past for bodies like SIRC has amounted to notification. Depending on the affiliations of the senators, it is also possible that one political party could control a majority on the committee, despite the restriction on only 4 MPs from the same party.

These are not fatal flaws, by any measure. It would be very nice to address some of the issues noted above, but on paper at least, this will be a stronger body than the UK and Australian equivalents. And a dramatic change for Canadian national security accountability.

As a small addendum, I would add that, as I understand it, the members appointed to the Security Intelligence Review Committee (SIRC) (the review body for CSIS) were not originally subject to a security clearance process (the CSIS Act anticipates them being sworn in as privy counsellors and swearing an oath). But now, the members are subject to a security clearance process -- all of the current members are security cleared. I am not sure whether there are special safeguards in place. But this (and the special advocate process) suggests that it should be possible to security clear "watchers" in a manner that does not mean that the "watched" then exercise undue influence over the selection process.

Article originally appeared on (http://craigforcese.squarespace.com/).